And hardly anyone notices

June 9, 2014

Last week, the Supreme Court finally decided a case, Carol Anne Bond v. United States, that the justices had been chewing over for seven months. George Will called it the “most momentous case” of this term, but unless you are a Court junkie, you probably never heard of it.

The case was important because conservative legal activists had seized upon it as a platform for exhuming, through constitutional reinterpretation, a long-dormant radical agenda. These activists saw the case as an opportunity to eviscerate the federal government’s capacity to enter into binding international agreements. But last Monday, Chief Justice John Roberts turned Will’s “momentous case” into a non-event. Writing for a majority that included Justice Anthony Kennedy and the Court’s four progressive justices, Roberts side-stepped his traditional ideological allies’ recipe for constitutional upheaval. Instead, Roberts narrowly construed the statute under challenge in the case to avoid ruling on the far-reaching constitutional theories they had propounded. Neo-isolationists on the right were deflated, internationalists relieved. But progressives, and for that matter, moderates and conservatives who value the federal government’s capacity to maintain its global leadership role, need to see this case as a wake-up call, and to fully take on board the lessons it teaches.

As the early twenty-first-century Republican Party has lurched rightward, a hobgoblin has resurfaced, rarely sighted since the 1950s, when fervent isolationism gripped the party. Congressional Republicans feared that liberal governments might use international treaties to ratchet up domestic human rights safeguards, or educational standards, or food safety requirements. The Tea Party has revived many of these fears—but this time around conservative activists have focused their strategy on the five-justice majority of the most conservative Supreme Court for at least the last three-quarters of a century. Accordingly, in the past several years, conservative and libertarian academics have come up with novel constitutional theories that would, if adopted by the Supreme Court, handily achieve their ends.

These scholars used the Bond case to argue that the Justice Department had stretched the federal treaty power to punish individual misconduct of no international significance and traditionally subject solely to state and local law. In 2007, the Department criminally charged, under a federal law implementing the 1993 international convention banning the use of chemical weapons, a woman who had taken toxic chemicals from the pharmaceutical lab where she worked, to inflict minor burns on her husband’s lover. Seizing on this prosecution—Solicitor General Donald Verrilli was obliged to acknowledge in oral argument before the Supreme Court that “whether or not Ms. Bond is prosecuted would [not] give rise to an international incident”—conservatives recruited their top Supreme Court advocate, Paul Clement, to take over Ms. Bond’s defense.

Clement, and more boldly, several amicus curiae (“friend of the court”) briefs filed by right-wing think tanks and advocates, proposed drastic limitations on the treaty power, functionally equivalent to restrictions originally proposed by mid-twentieth-century isolationists in the form of a constitutional amendment, known as the Bricker Amendment after its sponsor, Senator John W. Bricker of Ohio. The Bricker Amendment provided that Congress could only pass legislation to implement (i.e., ensure U.S. compliance with) an international treaty if the legislation was authorized by the “enumerated” powers assigned to Congress by the Constitution, such as the power to regulate commerce; if a treaty addressed matters not covered by those enumerated powers, Congress could not enforce it. President Eisenhower fiercely opposed the proposal because it would “shackle the federal government so that it is no longer sovereign in foreign affairs.” But congressional isolationists were bent on repudiating the bipartisan internationalism that had made possible victory in World War II and the postwar, U.S.-engineered framework of international institutions. They so dominated the Republican majorities in the Senate and House that only the parliamentary legerdemain of the Democrats’ newly elected Senate Minority Leader, Lyndon Baines Johnson, enabled the White House to defeat the isolationist proposal.

Last Monday, by narrowly reading the statute (and, in effect, the chemical weapons treaty) on which Ms. Bond’s prosecution was based as not covering this particular case, which he trivialized as a “local assault with a chemical irritant [as if it were] the deployment of a chemical weapon,” Chief Justice Roberts’ 6–3 majority shelved twenty-first-century isolationist conservatives’ attempt to write Bricker Amendment-like restrictions into the Constitution. In the future, the Department of Justice can avoid risking judicial imposition of any such constitutional constraints, binding on Congress and the President, simply by not basing similarly allegedly “local assaults” on the chemical weapons treaty and its implementing statute. But note should be taken of just how radical are the constitutional theories advanced by the conservative and libertarian ideologues who opportunistically joined Bond’s defense. All urged the Court to overrule a landmark, nearly century-old precedent established by Justice Oliver Wendell Holmes. Writing for a 7–2 majority in 1920, Holmes upheld legislation implementing an international convention that banned the killing of migratory birds. Justice Holmes held that the constitutional provision empowering the president “to make treaties” is an “independent” source of federal authority, authorizing implementing legislation, even if it reaches more broadly than Congress’ other, more limited, enumerated powers. (For example, under constitutional doctrines current in 1920, Congress lacked authority to outlaw the killing of migratory birds—other than the authority of the migratory birds convention.)

For the intervening decades, Holmes’ ruling has provided assurance to U.S. negotiators, and their foreign counterparts, that the federal government can carry out treaty commitments, free from state or local interference. Abrogating that assurance would, President Eisenhower warned, “mak[e] it impossible for the president to work with the flexibility he needs” to manage the nation’s foreign affairs. Despite this concern, widely echoed by Republican and Democratic administrations and other experts, last Monday three members of the current Supreme Court—Justices Antonin Scalia, Clarence Thomas, and Samuel Alito—embraced recommendations to replace or gut Holmes’ rule. One theory, highlighted in Justice Scalia’s opinion, plays a semantic “gotcha” game to argue that the constitutional prescription to “make” treaties does not include authority to “implement” them. Justice Thomas joined Scalia’s opinion, and also issued his own. Thomas’ opinion, in which Justice Alito also joined, would directly constrain treaty negotiators—even more broadly than the Bricker Amendment itself. Asserting (conclusorily) that, because treaties inherently, “by their nature … relate to intercourse with other nations,” it would not be “proper,” under Congress’ constitutional authority to enact laws that are “necessary and proper,” to implement treaties through legislation that addresses “purely domestic affairs.” Thomas’ ban on treaties addressing (any) “purely domestic affairs” would mean, as treaty power experts David Golove and Martin Lederman have observed, that “[T]he United States, uniquely among nations, would be constitutionally inhibited from concluding not only human rights treaties, but [international agreements addressing] environment, health, terrorism, and kidnapping, to name only a few.” Importantly, Thomas’ swipe at the scope of Congress’ “necessary and proper” authority would (not inadvertently) expose to constitutional challenge uncountable major domestic reforms no less than laws implementing international treaties.

The Court’s narrowly drawn disposition of the Bond case, on statutory grounds, means that contemporary neo-isolationists’ ambition to scuttle Holmes’ constitutional rule, and the regime of international governance built on it, is down for the moment, but not necessarily out, definitively or forever. So, an essential take-away from this non-momentous near-miss is that right-wing isolationism is back, as radical as its mid-twentieth-century forbear, focused on specific policy outcomes that would repudiate decades, indeed centuries of law, policy, and practice. The difference is that, this time around, the right has chosen a route to victory through the Supreme Court—not Congress, state legislators, or voters. This is now SOP on the American right, across a range of domestic and now even foreign policy matters hereto considered—especially by judicial conservatives—to be in the wheelhouse of the political branches, not the courts. This conservative turn to their slender one-justice Supreme Court majority should be unsurprising, at a time when the electoral college tilts control of the White House toward Democrats and Congress is sidelined by perpetual gridlock. Opponents of the far right need to take the full measure of their expanded arena of attack. For starters, progressive leaders in and out of the Obama Administration need to carefully gauge the risks of pursuing borderline cases like that of Carol Anne Bond, to avoid unnecessarily making the day for the smart, politicized lawyers who oppose them on and off the bench.

Simon Lazarus is Senior Counsel to the Constitutional Accountability Center.